Unlicensed and Unheard: Stifling Segway Speech

Do
tour guide licensing requirements violate the Free Speech Clause? In the past
year, tour guides in two major tourist-destination cities challenged licensing
schemes to two different results. For guides in the city of New Orleans, the
Fifth Circuit held that the enforcement of tour guide regulations served an
important governmental purpose and was within the confines of its police power
to implement. Kagan v. City of New
Orleans, La., 753 F.3d 560 (5th Cir. 2014), cert. denied, 135 S. Ct.
1403, 191 L. Ed. 2d 361 (2015). The D.C. Circuit struck down a similar
Washington D.C. regulation on the grounds that the government interest was not
great enough, nor was the regulation sufficiently tailored to pass an
intermediate scrutiny test. Edwards v.
D.C., 755 F.3d 996 (D.C. Cir. 2014). The D.C. Circuit opinion concluded
that while content-neutral, the licensing scheme was not implemented in the
least restrictive way possible, a requirement for even facially-neutral laws. Id.

This blog post argues that the
D.C. Circuit holding was appropriate while the Fifth Circuit holding was not,
because both regulations chilled speech for essentially non-existent problems.

Founding
Fathers & Bayou Ghosts

In 2014, five major cities across
the country mandated that a private tour guide be licensed before conducting
any tours, including Washington, D.C. and New Orleans, Louisiana. In
Washington, D.C., the owners ofSegs in the City,a Segway tour company based out
of the capital, challenged the licensing scheme. The company, whose logo is a
fusion of a hot pink martini glass and Segway Human Transporter, takes
customers on “Segway Safari” adventures through monuments, past museums, and
onto the off-road terrain of the National Mall.

The
New Orleans regulations were challenged as well. These plaintiffslead a variety of tours, the topics of which include regional
cuisine, neighborhood history, and ghost and vampire folklore. While the tour
experience may vary dramatically in the two cities, the licensing laws were
nearly identical.

The licensing schemes in both
Washington D.C. and New Orleans were content-neutral—they did not regulate what
a tour guide could or could not say. Instead, they each required that guides
pay a fee and pass both a background check and an extensive history exam in
order to lead a tour (New Orleans required an additional drug test as well). In
both cities, the governments stated that the regulations were necessary to
protect basic public safety and the tourism industry. Brief of
Defendant-Appellee at 11,Edwards v.
District of Columbia,No. 13-7064
(D.C. Cir. 2013); Brief in Opposition at 1,Kagan
v. City of New Orleans, No. 14-585 (U.S. 2015).

Licensing Schemes Lack Muster to Pass Heightened Scrutiny

Neither
court considered the regulation of tour guide speech to be a regulation of
commercial speech (expressions related
solely to the economic interests of the speaker which are not inherently
protected), but both applied the intermediate scrutiny test for
commercial speech established in Central Hudson, because the licensing
schemes regulated an economic activity with inherent expressive speech.
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 573, 100 S. Ct. 2343, 2355, 65
L. Ed. 2d 341 (1980). Central Hudson held that speech suppression is
permitted whenever it directly advances a substantial governmental interest and
is not more extensive than is necessary to serve that interest. Id.

The Central
Hudson testrequires that a law infringing on
the First Amendment must meet five specifications:(1)
it is within the constitutional power of the Government; (2) it furthers an
important or substantial governmental interest; (3) the governmental interest
is unrelated to the suppression of free expression; (4) the incidental
restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest, and (5) the regulation leaves open ample
alternative channels for communication. Id at 2531.

For the New Orleans regulation, the
Fifth Circuit reasoned that the licensing process was content-neutral (it did
not dictate what a tour guide could/could not say on a tour), and that
requirement of a drug test and a history exam furthered the city’s substantial
interests in protecting both the tourism industry and the public from
criminals. Kagan v. City of New OrleansLa., 753 F.3d 560 (5th Cir. 2014).

For the D.C. regulation, however,
the D.C. Circuit held the District had failed to present any evidence that the problems it sought to thwart actually existed.
What’s more, the court asserted that the government failed to demonstrate that
the exam was an appropriately tailored antidote. Finally, the court concluded
that the District had provided no explanation for using less restrictive but
more effective means of accomplishing its objectives.Edwards v. D.C., 755 F.3d 996 (D.C. Cir. 2014).

While the two courts agreed on how
to apply the majority of the Central
Hudson test, they disagreed that the respective cities had an important or
substantial interest at stake, and that the restriction on the First Amendment
freedoms were no greater than necessary to protect that interest. The Fifth Circuit appeared to accept New
Orleans’ rationale at face value, concluding that “without those protections
for the city and its visitors, the government interest would be unserved.” Kagan v. City of New Orleans,753 F.3d 560at 561 (5th
Cir. 2014). The court reached this conclusion even though the city only
produced two total instances of unlicensed tour guides, and there was no
evidence that these guides had harmed or defrauded anyone. Id.

The D.C. Circuit took a more probing look into
the problem that was sought to be remedied by the regulation, and found
similarly laughable statistics, in addition to irreconcilable theories on
market forces and crime prevention. “What, pray tell, does passing the exam
have to do with regulating unscrupulous tour businesses and unethical guides? How
does memorization of addresses and other, pettifogging data about the
District's points of interest protect tourists from being swindled or harassed
by charlatans?—surely, success on the District's history exam cannot be thought
to impart both knowledge and virtue.” Edwards v. D.C., 755 F.3d 996 at 1007 (D.C. Cir. 2014).

The D.C. Circuit agreed that public
safety and tourism could produce substantial government interests, but with a
proper examination of the facts at hand properly concluded that the regulation
was unnecessary to constitute an acceptable limitation on protected speech
under the Central Hudson test.

Implications
Beyond Segway Tours

Whether or not to tip a guide who makes corny jokes or breathes
too heavily into the microphone is up for debate, but whether or not these
licensing schemes stifle free speech should not be. The D.C. Circuit was
correct in holding that under an intermediate scrutiny analysis, the regulatory
scheme prevented tour guide operators from becoming licensed, and therefore
pre-chilled their speech. It was neither sufficiently narrowly tailored, nor
had the city proven the harm that necessitated regulation in the first place.

While tour guide licensing may
seem mundane, the issue of regulation of unlicensed professionals bleeds into
every aspect of modern life. Occupational licensing requirements are currently
being litigated in lower courts across the country, with many plaintiffs
raising First Amendment objections. From a diet blogger in North Carolina,Cooksey v. Futrell, 721 F.3d 226 (4th
Cir. 2013), to a virtual veterinarian in Texas,Hines v. Alldredge, 783 F.3d 197 (5th Cir. 2015), to a newspaper
advice columnist in Kentucky,Rosemond v.
Markham, No. CV 13-42-GFVT, 2015 WL 5769091 (E.D. Ky. Sept. 30, 2015), what
a locality may censor and when exactly an intermediate scrutiny test is
appropriate are questions left unanswered by the Supreme Court.

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